Loyola University Chicago School of Law, J.D. 2018
Illinois Public Act 100-0538, commonly referred to as House Bill 40, was signed into law on September 28, 2017. The Act repeals provisions in existing Illinois laws that aim to make abortion illegal should there be any change to the federal standard. Additionally, the Act lifts a ban on insurance coverage for abortions for low-income individuals enrolled in Medicaid. While enacting House Bill 40 was a win for advocates of reproductive rights in Illinois, the state will still need to comply with federal anti-abortion laws, such as the Hyde Amendment.
Public Act 100-0538 is most notable for its “trigger repeal,” which eliminates language contained in the Illinois Abortion Law of 1975. The eliminated language was designed to outlaw abortions at the state level if the 1973 Supreme Court case, Roe v. Wade, were ever overturned or modified or if the U.S. Constitution were ever amended. However, many doubted that this trigger language could have actually been enforced due to the lack of specificity, which rendered it merely a statement of intent. Nevertheless, many advocates felt that trigger repeal was an important symbolic gesture, particularly following the confirmation of conservative Supreme Court Justice Neil Gorsuch. Public Act 100-0538 also removes language from the Illinois Abortion Law of 1975, which states “the unborn child is a human being from the time of conception.” The use of terminology such as “unborn child” in a medical context is nonspecific, and contributes to a dialogue that prioritizes the fetus over the life of the mother.
Public Act 100-0538 is most significant for its expansion of reproductive healthcare for individuals insured through Medicaid and state employment plans. Now, abortion will be covered by health insurance plans for Illinois state workers and Medicaid recipients. This is significant because a 2014 study revealed that 75% of abortion patients were poor or low-income. Additionally, 75% of these patients cite inability to afford raising a child as one of their reasons for having an abortion. Low-income and uninsured women often experience delays in obtaining an abortion due to inability to pay out-of-pocket for the procedures. Some were even forced to carry their unintended pregnancy to term. Because of Public Act 100-0538, abortion access in Illinois will not be determined by an individual’s income level.
However, while Public Act 100-0538 expands access to abortion in the state of Illinois, it does not preempt federal laws governing the area. The Hyde Amendment is a rider to the Congressional appropriations bill for the Department of Health and Human Services. This piece of legislation was conceived in 1976 by Rep. Henry Hyde, a Republican from Illinois’ 6th Congressional District, in response to the 1973 Supreme Court case, Roe v. Wade. In discussing his motivation for the Amendment, Hyde stated “I certainly would like to prevent, if I could legally, anybody having an abortion, a rich woman, a middle-class woman, or a poor woman. Unfortunately, the only vehicle available is the…Medicaid bill.” The Hyde Amendment has been reinstated annually, regardless of the dominant Congressional party.
The Hyde Amendment prohibits the use of federal funds for abortion procedures. By extension, this prohibits use of Medicaid dollars being used to pay for abortions. Exceptions are made in instances of rape, incest, or when the life of the mother is at stake. No exceptions are made for teen pregnancies, a pregnancy that will cause serious permanent health issues, or when there are financial hardships.
Federal & State Compliance
Public Act 100-0538 makes Illinois one of only five states that voluntarily provide Medicaid coverage for an abortion. Illinois is the first state in decades to voluntarily extend this coverage to Medicaid beneficiaries, and advocacy organizations such as the National Institute for Reproductive Health are hopeful that other states will follow suit. There are twelve other states that do so under court order.
However, despite Public Act 100-0538 being signed into law, Illinois will need to comply with the Hyde Amendment when extending abortion coverage to Medicaid beneficiaries. This means that the state must use only its own Medicaid contributions to cover abortions. These funds will not be matched by the federal government, as state Medicaid funds spent on other procedures are. The 17 other states that provide abortion coverage under Medicaid have had varying levels of success in doing this. Some states have resorted to offering providers lower reimbursement rates, with long delays in repayment; while other states have established a separate claim submission process unique to abortions. It is not clear yet what rules Illinois will promulgate to implement its extended coverage while complying with Hyde.
The Hyde Amendment itself is hugely unpopular—a poll from Hart Research Associates shows 86% of voters agree that “however we feel about abortion, politicians should not be allowed to deny a woman’s health coverage because she is poor.” And indeed, the Hyde Amendment remains a barrier to abortion coverage. However, Public Act 100-0538 serves as a temporary fix for extending abortion access to Medicaid in Illinois while still complying with this federal law.